American Academy of Political and Social Science

The Argument for Judicial Rule-Making Author(s): Herbert Harley Reviewed work(s): Source: Annals of the American Academy of Political and Social Science, Vol. 167, The Administration of Justice (May, 1933), pp. 91-101 Published by: Sage Publications, Inc. in association with the American Academy of Political and Social Science Stable URL: http://www.jstor.org/stable/1018379 . Accessed: 12/09/2012 16:38
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The Argument for Judicial Rule-Making

By HERBERT HARLEY

body govern pleading, practice, and evidence. Our procedure was evolved in the English courts through a series of decisions, at times modified by acts of Parliament. In the nineteenth century the English court organization and the body of procedural rules became ill-adapted to modern affairs, causing prolonged agitation which led in the early seventies to radical reforms. The courts were unified and given administrative direction and rule-making power. Parliament supplied for the transition a relatively brief schedule of rules, and authority for the judges to supplement and amend these rules indefinitely, even to the extent of abrogating earlier statutory rules. Some years elapsed, however, before the judges acquired a method for exercising their powers effectively. They finally established a Rules Committee, composed of both judges and practitioners, and for nearly fifty years this simple machinery has served to meet all needs. While the judicature acts required the submission of all new rules to Parliament, there has been no in1 An article entitled "The New Procedure of the English Rules," by Professor Robert W. Millar (111.Law Rev., Dec. 1932), tells of the latest reaction of English judges to popular dissatisfaction. It illustrates the flexibility of judge-made rules. The quality of flexibility is one dreaded by some American practitioners, who cannot visualize a system in which judicial discretion plays a large r61le. The English reform policy spread rapidly to every dominion and colony, in all of which for half a century or more the courts have been autonomous as to rules and administration by grant of parliamentary power. Their legislatures can at any time step in and remake whole judicial establishments, but they

procedure comprisesthe stance of interference by the legislative JUDICIAL of rules which arm.
The adaptation of substantive law to modern conditions and American life was worked out through decisions in the first half of our national history, but no machinery existed for adaptation of procedure. The result was legislative interference of a most positive sort, when in 1850 the New York Legislature enacted a body of reformed rules written by David Dudley Field. This legislated code was adopted by various states. By the time the reform was effected in England we had twenty-seven states under code practice, and in all the others the legislatures were looked to for needed changes. Hence, we had already acquired a norm when England revolutionized the administration of justice and introduced efficient methods of procedural regulation. By that time the defects of rigid rules laid down by an alien arm of government were such that there was a demand in New York for more legislation to cure the ills of legislation. And before long these rules, which should be simple, consistent, and flexible, became, in our more populous jurisdictions, like the serpent of the Laocotin.
THE CHICAGO MUNICIPAL COURT

Seemingly unaware of the correct solution, we resorted more and more to legislation, until in Illinois, in 1904, a constitutional amendment was adopted
refrain from procedural tinkering because the judges and lawyers have done well and the legislators realize their own incompetency in this field. 91

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for the purpose of giving Chicago a modern charter; and, by good fortune, it carried a rider which permitted the legislature to establish in that city a court intended to abolish the evils associated with fifty-four justice-ofthe-peace courts and to take over a large share of commercial cases which were being asphyxiated on congested jury calendars.' The amendment was liberal in excluding the proposed court from the requirement that procedure should be uniform throughout the state. When the new court was organized in 1906, Illinois was widely known as the world's park for the preservation of ancient species of pleading which had elsewhere perished from the face of the earth. The new court was legally free and untrammeled as was no other court in this country, but it had to exist in and make terms with a hostile environment. The Chicago Municipal Court Act was drafted for a committee composed of leading business men, by former Judge Hiram Gilbert, who became a candidate for its executive office in the first election of judges. He was defeated by Harry Olson, who held the chief justiceship for twenty-four years, and who notably utilized the large administrative powers conferred on the judges and the chief justice. Not least among these powers was that of making all rules of procedure which were not inconsistent with the practice laid down in the act itself. There was a provision that rules so made should be submitted to the Supreme Court of the state, which was in turn empowered to
2 The city failed to get a new charter but got the greatest city court in the country. The court was given unlimited contract jurisdiction, and ever since has taken nearly all of those causes in competition with a Circuit and a Superior court, which since have been confined largely to chancery and tort litigation, and juvenile delinquency.

abrogate any rule. But, at the next session of the legislature nearly forty sections were amended, including the requirement that new rules be submitted to the high court. So many of the details of practice were embodied in the act that there has been no regular session of the legislature from 1907 to 1931 which has not seen the introduction of bills intended to improve the practice. But the Supreme Court has never felt impelled to exercise its superintending power. Inasmuch as the act contained nothing concerning pleadings, the court was free to follow its bent. Judge Stephen Foster was sent to London to study English pleadings, and on his return that system was fully adopted. The new pleading was an anomaly in the world's park for the preservation of ancient procedure, but it has, nevertheless, remained intact. The requirement that every pleading be verified made it impossible for unfounded claims to avoid immediate judgment. The result has been swift justice for the deserving creditor.
MOVEMENT TO RESTORE RULE-MAKING TO THE COURTS

The success of the Chicago Municipal Court, with its considerable measure of rule-making authority, would have led in time to a movement for restoring such authority generally to the courts. It remained for Hiram Gilbert to give this movement just the boost which it needed. He set himself to work revising the entire body of procedural rules in the Illinois statute book. At his own expense he published his complete code of about two thousand sections in an excellent but most formidable text, and then secured a seat in the legislature. It is doubtful if any Illinois lawyer, judge, or teacher of law ever compared Gilbert's revision with the existing law. They were all

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too busy trying to defeat his bill, which came within five votes of being passed. Such a union of all the discrete elements of the profession could have been effected by no lesser threat, nor by any ordinary legislator or group of legislators. The best weapon in the hands of the defenders of the status quo was supplied by Roscoe Pound, then a law teacher in Chicago, who first unfolded to alien eyes the scroll containing the English judicature acts and rules. The campaign for rule-making authority was on. Let us close this sketchy history of the movement to restore rule-making to the courts in Illinois by saying that Hiram Gilbert became staff adviser of the Chicago Municipal Court in time to draft amendments to the Municipal Court Act for the legislature of 1931. Renouncing legislative hegemony, Gilbert struck out the word "inconsistent," so that the court was made master of all its body of legislated practice, and also eliminated the Supreme Court as a reviser of the court's rules. The amendment was ratified by popular vote in the fall of 1932, and now the court is free to develop its practice without the delays and uncertainties and rigidity inherent in legislative control.3 The movement for restoring rulemaking power to the courts, as it is commonly phrased, has made steady progress since Gilbert and Pound, in their different ways, gave it a start. Ordinarily only rules of civil procedure are meant, though the language used is broad enough to include criminal procedure also.
3 While biennial attempts to regulate procedure by statute were a serious burden to this court, it became much worse when, about ten years ago, the Supreme Court held that all amendments to the act must be ratified by a vote of nearly one million potential lawmakers.

DISCUSSION OF THE MOVEMENT

There has been too much dogmatism on behalf of this movement. Its proponents have generally taken the position that legislated procedure is inherently evil and that reform would inevitably follow a restoration of the power to the supreme courts. This author has frequently demurred to this, pointing out that supreme court justices are not selected for this purpose, they are not necessarily informed, and they are always overworked. It furthermore proved, when the experiment has been made, that the justices have been extremely reluctant to act, owing to fear of repercussions. It has been quite obvious that at least a few courts possessing rule-making power have been afraid to yield to the petitions of a minority of progressive lawyers. This is really the one valid argument for keeping rule-making in the legislative branch. Its validity, however, is rapidly waning since the bar is gaining strength and a sense of duty in respect to justice, and since appropriate machinery for the development of rules of judicial procedure has been evolved in the form of judicial councils. It should be admitted that legislated procedure has not everywhere been so harmful as in New York, Illinois, and Texas. There are such states as Kentucky, Wisconsin, Kansas, and Nebraska, where the strain has not been severe, courts have made the best of what was offered in the first Field code, and legislatures have been moderate in experimenting. But even in some of these states revisions have been had, and the benefits following are hardly to be credited to the legislatures, for the reason that the revisions were made by judges, law teachers, and responsible lawyers, in a consistent and deliberate way and with hardly a modicum of official assistance. Such

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revisions prove that legislators have good intentions; they show more emphatically that, in our present time at least, they must be aided by talent and responsibility. These comparative successes do not disprove the essential idea of judge-made rules; they do illustrate the need for something more than a mere act of legislature conferring rule-making power upon a supreme court. It has been suggested that the judiciary might regain full control over procedure through a supreme court decision holding this power to be implied in every constitution. It would be good constitutional law so to hold, and would amount to calling legislative interference a usurpation. There has been no instance of such an action, however, doubtless because the unconverted element of the bar, with its vast political influence, might punish the justices. If a court should assume its power, this would not result in instant dissolution of the body of statutory rules, because the court would at the same time adopt these rules, and then, as occasion might warrant, begin the process of molding them to consistent and sensible form. In Illinois such a decision would be fully in accord with rulings long since made. Unless the character of the Illinois Assembly undergoes a change, relief will have to come in this way, and it is likely to come whenever the bar indicates a sincere desire for it.4 But advocates of judicial rule-making have not, until recently, aimed at
4 The address of President Amos C. Miller to the Illinois State Bar Association (Proc. 1932) was devoted to the prospects for obtaining reforms through the Supreme Court, which declared its autonomy as to all matters directly involved in the administration of justice in the leading case of In re Day. Some change has doubtless come in the Illinois legislature since the disclosures of scandal in the Sanitary district.

such a short cut to reform. Some of them have honestly feared judicial inaction, while a large contingent of the profession, seeking parasitical advantage, has feared that the supreme court would act too drastically. As Chief Justice Hughes said, "Some fear it won't work, and some fear it will."
PROPOSED PROGRAM

What has been commonly proposed is that the legislature follow this program: (a) reserve for its own function such larger factors, especially those involving legislative policy, as may be embodied in a "short practice act"; (b) declare all other procedure to be a first schedule of court rules; and (c) "confer" on the court the power to abrogate or amend any such rules. This is a moderate program. It initiates an experiment. It puts the judiciary on its mettle. It relieves the legislature of its most difficult field of effort, the field in which it has been most severely criticized. It places no final restriction on legislative power. Such a program, following the English method, was adopted in New Jersey under the short practice act of 1912. Though it has worked perfectly in that State, there has been a marked tendency in other states for legislatures, once convinced of the principle of judicial rule-making, to turn the whole matter over to the supreme courts with a liberal gesture. Especially since we have learned how to codirdinate the bar, the supreme court, and the law school faculties through a judicial council, the accepted program is to ignore the hesitant route and adopt a sweeping change. There is another plausible way of balancing power; it is to enact, instead of a short practice act as a check on judicial power, a law which lays down a category of needed reforms in procedure, and directs the court to

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elaborate these reforms under power conferred. AGAINST REASONS LEGISLATIVE RULE-MAKING The reasons of those who are opposed to a legislative monopoly of rulemaking have been often expressed. The legislature takes too long, if it acts at all. Moreover, the work is done in a piecemeal fashion, with resultant inconsistencies. The delicate fabric, upon which justice so much relies, or by which justice is so cruelly hampered, should be the product of deliberation in which all the talent of the legal profession, as yet comparatively meager and unused, should be concentrated. Legislatures in theory work out popular interests. The people have an interest in judicial procedure, but they never elect representatives with court procedure in view. Legislatures perform all their work in a few weeks, amidst confusion and turmoil, bedeviled by political stresses; they have no memory of past actions, no programs for future action. Procedural rule-making is inconsistent with the policy of legislatures in respect to analogous situations; all the numerous boards and commissionsmore than one hundred in some states -created by legislative acts, some of which have quasi-judicial power to be exercised wholly by laymen and with none of the safeguards traditional to constitutional judicature, have unrestricted rule-making power; and such commissions, sharing in the powers of both executive and judicial departments, have been our one successful contribution to government since our national history began. As for the historical, or experiential, argument, we observe that statutory rules of procedure have contributed seriously to the major weakness of our entire system of government, the

weakness which, until our economic collapse, rated foremost among our national problems. This defect in some states and cities has approached closely to a breakdown of the machinery of justice. And at the same time our efficient arms of administration, the commissions, state and national, have had free scope to meet their problems through rules of their own making.5 Legislatures at their best supervise governmental operations. But they have no month-to-month continuing supervision. Hence the necessity for the principle of delegated rule-making. Government could not exist if every agency created by authority of the legislature were dependent upon legislated rules for every act. How much less reasonable is it that a separate and independent department of government should be so dependent. In theory, the courts so impeded should rarely yield justice. That they commonly do so is to be credited to factors other than legislative control of their inferior functions. Legislatures are by their own choice, and with few exceptions, deprived of expert advice in bill drafting. Yet the mere phrasing of judicial rules calls for the highest talent available. Bills introduced at the behest of bar associations succeed far less often than bills which are virtually anonymous. A legislature is a maelstrom of conflicting interests, with little expertness; it is an
5 " Surely courts which have the power to declare an act of the legislature void because it is in conflict with the constitution, and courts which have the right to declare substantive law with as binding force as if it were expressed in legislative enactment, can be trusted with the regulation of procedure. Is not the power to say what the decision shall be greater than the power to enact the mere details of procedure by which this decision shall be made?" Presiding Justice Finch, Appellate Division, First District, New York, in N. Y. State Bar Assoc. Bulletin. Dec. 1932, p. 454.

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arena for the greatest sport in the world, a sport which is as morally debilitating as it is exciting. This is not to say that legislators are not usually very decent people with the best interests of the public at heart. But, as Will Rogers said of the excellent senators with whom he lunched in Washington, "They do not know the evil they do."
RESPONSIBILITY OF THE COURTS

There is one especially cogent reason why the judicial branch should be required to regulate procedure; in no other way can the courts be held truly responsible for the performance of their duties. It is no mere argument, but a sad fact, that the courts have been deprived of the most stimulating and responsible work they could perform, of the work they must assume if they are to be held accountable for their product. And the absurdity of the defense made of legislatures is apparent, in any long view, when we consider the paramount authority which the courts are expressly created to exercise. They defend our every precious right with power supreme except as to the function of defining procedural steps.
EFFICIENT LEGISLATURES

do not indulge in a mass production of bills, intended mainly to impress constituents, for they know such bills would never even be referred to a committee. The result in such a state is constant supervision over the entire government, including the judiciary, with expert leadership responsible to a majority vote of the electorate. We have no such legislatures, but they are offered as exhibits in the fortunate provinces on our northern border. And yet these legislatures, with their efficient organization, possessing full public confidence, voluntarily choose to leave procedural rule-making wholly to the judiciary.
EVILS OF LEGISLATED CODES

There are legislatures that are well equipped for their wide range of duties. They have but one chamber, and there are no restrictions as to sittings. They are, in fact, in session virtually all the time, with the approval of the people. They are aided by civil service employes of high qualifications. The executive heads of state are not only a part of these legislatures but are actually in control, permitting only " government" measures to have precedence. This is a system built on the principle of responsible party government. In such legislatures members

Legislated codes for the guidance of litigants and judges command little admiration except that accorded by the least responsible element in the legal profession. Intended to be objective, such rules frequently restrict judicial power so that judges are compelled by law to do what they realize is wasteful and unjust.' Rules of contentious procedure create substantive rights for litigants, which rights lead to further litigation, until we have a growth resembling the thicket surrounding the banyan tree, which produces roots at the tips of its drooping branches. There is nothing about the personnel,
8 Chief Justice Taft said: "There are great defects in our present system of administering law, and the truth is that the public needs education as to whose fault it is that the law is not as effectively administered as it ought to be so far as procedure is concerned. You know and I know that . . . the legislatures do not do their duty with reference to the interest they take and the skill they manifest and the time they give to the improvement of practice and procedure. .. I do not think the legislatures are opposed to reform of our legal procedure, but there are few people who take the necessary interest and have the knowledge and power of leadership either in Congress or in the legislatures."

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the organization, or the rules of legislatures, or their political incidence, that justifies the expectation that they can restore order in the jungle which their unrestricted usurpation has created. The legislatures were resorted to at a time when the judiciary was weak and unorganized. They have had eighty years in which to experiment, with the result that wherever justice is tolerably administered it is largely because of the inactivity of the legislature. Wherever justice is best administered, we find that the legislature has delegated full rule-making power to the more expert and responsible branch of government. We have already confessed the helplessness of an unorganized judicial system. We must now concede that it was quite justifiable for the legislatures to usurp this judicial function when the courts were in chaos, as they were in New York eighty years ago. We must concede that our traditional judicial system has been unable to formulate administrative policies. The penalty has been that it has had to take what was imposed, make the best of it (to adopt a euphemism), and await the development of professional opinion and a professional consciousness of responsibility.
EXPERIENCE OF SPECIFIC STATES

York. The legislature waited, and the Supreme Court did virtually nothing. Common law procedure prevailed. Then, after two attempts to revise appellate procedure, the legislature gave up in despair and directed the Supreme Court to perform its duty. Its judges were interested in appellate rules and they soon turned out a set which were satisfactory for two generations. Then the court relapsed to contemplation of its own absorbing problems, and the legislature gradually assumed the work of modernizing procedure and practice by statute. By 1915 the constitutional mandate was so lost to memory that the legislature revised the entire body of procedure, and despite the experience of decades produced a system in some respects inferior to the Field code. New JerseyWe have referred to the success New Jersey has had under its short practice act and grant of rule-making power since 1912. Nobody can maintain that rule-making alone constitutes the total of judicial administration. The rules have worked excellently in New Jersey, but rapid growth of population and business and a most complex judicial organization have resulted in tedious delays for litigants. The next step is to organize the judges for efficiency. Constitutional amendments framed by the Judicial Council with the aid of judges, lawyers, and lay citizens, are doubtless under consideration at the present time. ColoradoColorado was an early state in which the legislature willingly turned over procedural work to the Supreme Court. In this instance there was no reluctance on the part of the Supreme Court, which proceeded expeditiously to alter procedure. The bar had not been

Michigan-What of the states where judicial rule-making has been emancipated from legislative control? At the very time when New York accepted the theory and the code of David Dudley Field, a constitutional convention in Michigan, aware of the need for making a break with the procedure which accompanied a body of feudal law, gave a mandate to the Supreme Court to provide a modern body of procedural rules. Undoubtedly Michigan lawyers were impressed by the situation in New

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called into council, and the result was a storm of disapproval. So the court went to work again, and, realizing the lawyer's point of view, greatly improved its product. It appears to have made the same error again quite recently, when it authorized trial judges to advise juries as to the facts. An element of the bar felt outraged, and a minority of the court were in opposition. The dissenting opinion in Kolkman v. People clearly expressed fear of legislative reprisal;7 for it must be remembered that when a legislature confers rule-making power, it merely shifts responsibility; it does not abdicate. It can at any session return to the older regime. But there has been as yet no instance when popular disaffection has been observed. The danger lies wholly in the power of politician lawyers, if there be danger. The Colorado experience is valuable in illustrating how promptly action may be had when a supreme court is convinced that it has been impracticable in framing rules. Contrast this with successive legislative sessions. In Colorado it took eight years for the bar to secure a greatly needed increase in judicial salaries. Gradually our judges and lawyers have come to realize their joint responsibility for the administration of justice. Coincident has been the creation of judicial councils to serve as liaison bodies and afford the needed forum for the serious and disinterested study of judicial administration. In each of twenty states having these councils, it is a relatively simple matter to develop procedure intelligently. Of course, some enlightenment and unselfishness must be predicated on the part of the bar, but even here, the
' Kolkman v. People, 89 Colo. 8, 300 p. 575 (1931). For an analysis of this case see Jour. Am. Jud. Soc., Feb. 1933, comment by Prof. Charles T. McCormick.

power of a minority which is animated by worthy motives is illustrated. And the judicial council can go far to educate the bar and the supreme court justices. Where there is a judicial council and judicial authority over procedure, there is a short route to reform. Where there is only a judicial council, there remains the difficulty of securing a legislative hearing.8 WashingtonIn Washington the legislature created a judicial council and at the same time conferred rule-making power as to both civil and criminal causes. Immediately there began an illuminating program for obtaining needed changes through regimentation of the bar, the state college of law, and the Supreme Court. That is now the accepted route to procedural reform and regulation, and consequent responsibility of bench and bar. CaliforniaCalifornia's failure to profit by Washington's example actually afforded needed experience. The Judicial Council there, composed solely of judges, under special statutory authority amended the rules of trial practice. The State Bar and Superior Court judges voiced furious disapproval at the next convention of the Bar. This did not lead to a demand that the legislature withdraw the limited rulemaking power which it had conferred.
8 One of the oldest judicial councils in the country is that of Massachusetts; it has a personnel equal to the best and it devotes more time to its work than any other. But having to go to the legislature for reforms is truly a via crucis. Although Massachusetts has the best organized judicial system and the ablest judges, the legislature turns a deaf ear to reforms which would alleviate a great evil, that of submergence of the courts by a flood of litigation. This submergence would never have come if the Supreme Court had been given ridule-making authority when it was conferred in Washington (1924).

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It led, instead, to the appointment of a State Bar Committee which invited the Judicial Council to reconsider, and the result was further amendment satisfactory to all concerned. The Bar Committee is now an established part of the State's judicature. Wisconsin-A few years ago Wisconsin initiated a variation of method. The legislature conferred full power on the Supreme Court and also created a rules committee modeled explicitly on the English pattern. This committee comprises judges and lawyers; like a judicial council, it keeps in touch with the bar. It is now engaged in a complete revision of rules including all the hundreds of statutes. Wisconsin is now precisely on a par with all the governments of the British Commonwealth of Nations. In Missouri the bar has caused a bill to be introduced in the legislature to enable the State to do as Wisconsin is doing. Michigan-In Michigan, only four years ago, progressives at the bar found the Supreme Court too engrossed with its regular labors to listen to appeals for reform. A new criminal code of great value was obtained from the legislature, but the reform leaders were all but desperate over Supreme Court inactivity. Again the legislature aided by creating a judicial council, and finally the legislature humbly petitioned the Court to perform its constitutional function. Then came an illuminating experience. The Judicial Council included several laymen, as well as judges and lawyers and a member of the Michigan Law School faculty, Professor Sunderland. The latter was made secretary. He was at the same time director of the Law School's Institute for Legal Re-

search. For once a state had every resource for reform, except an integrated bar. There emerged in due time a reformed practice book embodying numerous excellent changes. The only regret was that the State Bar Association represented a minority of the profession, and the Supreme Court judges, nominated in a State convention and elected by the entire citizenship, were not entirely relieved from political worry.
THE TREND OF OPINION

The creation of judicial councils is now clearly the trend in all the states. Equally, the idea of an educated and disciplined bar, organized by statute or under rule of court, is on the way to complete supremacy. A little more slowly marches the principle of judicial cooirdination for responsible, businesslike administration. This principle derives directly from the influence of judicial councils, which are furthering this idea in New Jersey, Kansas, Idaho, and other states. We are getting the stage set for assured progress.9 There should be no hostility to legis9 The draft recently submitted by the North Carolina Commission on Constitution provides for a judicial council comprising all judges of the Supreme and Superior courts, which will have power to make all rules except those applying to Supreme Court practice, which will be made by that Court. The powers given would lead to co6rdination of administration in the judges. The draft constitution recently promulgated by the Institute of Public Affairs of the University of Georgia provides a judicial council with full rule-making authority. It is composed of judges, lawyers, and laymen, and is authorized to call the judges into conference for consideration of all complaints made concerning the administration of justice "and shall take such steps in reference thereto as they may deem necessary and proper." The language is virtually that of the Chicago Municipal Court Act. It creates "a judicial council with a wallop," to borrow a term from Mr. Justice Robert F. Thompson, Appellate Div., N. Y.

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city government, which rode down our dogma of separation of powers, and the prospect that it may helpfully affect state and national government by merging executive and legislative functions. There is no disputing the growing tide of dissatisfaction which must of necessity work changes if we are to realize our dreams of self-government. It is a comforting reflection that our judicial system commands popular confidence in spite of retaining muich PUBLIC DEMAND FOR REFORM nineteenth-century perversion and inAlthough judicial reform looms so efficiency. Given only a moderate large in the public consciousness, there space of time, our courts will be that is no lack of faith in the judiciary. impregnable citadel of private and pubThe judicial branch is the only lic rights which our needs imply. We branch of government founded upon find the judicial branch embarked upon the Platonic principles of selection on a a program of reforms which justify basis of character, intellect, and experi- assurance. At the bottom is the halfence. While much is needed in respect wrought movement to create an eduto the selection of judges, we appear cated and disciplined bar, already now to be at slack tide and the turning bearing wholesome fruit. We find prois near.'1 It is the only branch of grams and successes in the reshaping of government, except the Army and judicial organization to lift it from oxNavy, which disciplines itself. It is cart times and make it contemporathe one arm virtually devoid of partisan neous with air navigation. We find a interests. powerful agency in the judicial council As we more and more feel the stresses movement, too long deferred but now incident to a vast, disarticulated, con- ascendant. We find bench and bar tinental system, striving feebly to re- developing an ambition to work out store order with justice in industry and their salvation through autonomous social relations, we hear more of radical powers. A significant thing about this orientatendencies on the part of thoughtful citizens. The radical embraces both tion is that it has gained full swing destruction and construction. We virtually without popular knowledge have the example of radical reform in and popular participation. The problem of devising remedies is beyond 10 In a recent plebiscite the California State popular comprehension. Such a highly Bar declared against a continuance of the elec- technical field defies rude remedies. tive method of choosing judges, and the Board of will suffice for our age but a Governors appointed a committee to draft a bill Nothing of all the talent we possess. utilization and present it to the legislature at the 1933 session. The proposed constitution for Georgia Justice deserves, and must have, the provides that the bar shall nominate five can- unstinted service of those who appredidates for judicial office in each district, from ciate the niceties of adjustment, the which the governor shall appoint and the delicate balance of powers, who are legislature confirm. In Ohio the bar is strongly for appointment for good behavior, and in disciplined by professional traditions and a high consciousness of the relation Michigan this reform has strong lay support. latures, but rather sympathy. They are not opposed to judicial reform. By inevitable fate they acquired their jurisdiction over procedural regulation. Sovereignty always seeks the protection of the more efficient arm of government, and in respect to the function of making rules, the courts were until quite recently wholly deficient. The only way for them to acquire proficiency, however, is to give them the power and the responsibility.

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their duties bear to the common weal. The most nearly perfect judicial machinery, in the hands of the most learned and responsible agents, would

if fall far short of ideal accomplishment deprivedof powerto governprocedural evolution,muchof whichstill lies in the future.

Mr. Herbert Harley is secretary of the American Judicature Society and of the Conferenceof Bar Association Delegates.